Fair Lawn settles lawsuit brought by former police sgt.

Fair Lawn will settle a lawsuit brought by a former police sergeant for $550,000.

Former Fair Lawn Police Sgt. Michael Messina, who retired last November, filed a lawsuit against the borough, police department and Police Chief Erik Rose in January 2008 through the Conscientious Employee Protection Act, also known as the "Whistleblower's Act," after he was transferred out of the detective bureau in 2007.

Deputy Mayor Ed Trawinski made a motion on March 30 to amend the resolution authorizing the settlement agreement to reflect that the mayor and council unanimously agreed to the settlement in closed session on Feb. 21 on the advice of Borough Attorney Ronald Mondello and Thomas Hanrahan, the borough's attorney through its municipal excess liability (MEL) insurance. Democratic Council members Lisa Swain and Kurt Peluso voted against amending the ordinance and, later, against the settlement agreement. The resolution passed 3-2, with Trawinski, Mayor Jeanne Baratta and Deputy Mayor John Cosgrove approving it.

Swain previously asked for the settlement agreement to be tabled at the March 13 and March 27 council meetings because of dissatisfaction with the resolution's wording and a reconsideration of legal strategy - weeks after the agreement was settled in principle. She subsequently requested the meeting be moved to 9 a.m. on March 30.

Under the terms of the agreement, the borough and the MEL will split the total cost of the settlement, paying $275,000 each. The MEL will disburse the total cost of the settlement this year while the borough will be responsible for repaying its share to the MEL over the next three years. As part of the agreement, the borough does not admit liability or damages on the part of the borough, its elected officials or employees. The borough will not pay additional fees for Messina's legal counsel or interest on the settlement, Mondello said.

In 2010, Messina testified that he was promoted to the detective bureau in 2001 from patrol and received supervisory training from Detective Lt. Bruce Raymond. During his six years in the detective bureau, Messina said he performed supervisory work above his title and he said he received a retaliatory transfer and harassment from Rose as a result of filing a desk audit with state officials. Messina's former supervisor, Detective Capt. Anthony Serrao, and several other officers corroborated Messina's statements during the trial.

State and municipal employees are allowed to file a desk audit under state regulations if they believe their duties do not conform to the current job description for their title, according to the State's Civil Service Commission's Web site.

In March 2010, a seven-person jury awarded Messina nearly $550,000 for lost past and future pay, lost pensionable income, emotional damages and punitive damages. In April 2010, additional money was awarded to Messina for a total of $815,324.67 for prejudgment interest, attorneys fees, and other costs.

An appellate panel subsequently issued a reversal on the damages after finding fault with the trial court's instructions regarding the calculation of wages.

Trawinski said the borough could face sanctions from Judge Joseph Conte if it did not settle because it had previously agreed to a settlement on Feb. 21 along with greater exposure to liability because the MEL would pay only $261,000 if the suit progressed further.

"I don't want people to think we're settling because we're caving, but because there are sound economic reasons for settling," Trawinski said.

He stated that it was "distasteful to settle for two reasons" stating later that the legislature needed to amend the statutory requirements to seek a desk audit and for regulations regarding whistleblower status.

Cosgrove was similarly displeased.

"In these tough budgetary times, I feel terrible that we have to spend this kind of money when we're cutting back on services," Cosgrove said. "I feel like the guy in the circus that has to follow up and clean up the mess."

Both Swain and Peluso indicated they would vote against the measure despite the recommendation of legal counsel. Swain said she did not believe the settlement was in the best interest of Fair Lawn, while Peluso conceded that he could see "both sides of the [council] argument."

"If we don't vote for this, what do you want us to do?" Trawinski asked.

When Peluso, who participated in the meeting by telephone, suggested the borough could pursue the matter in court, Trawinski stated that the borough could only argue the total amount of damages to be awarded. Borough officials have stated that Messina had to prove four points in court and three of those points were already established in the case and not subject to retrial.

In an e-mail, Hanrahan disputed the borough's interpretation, stating that a retrial would have focused on issues of causation and liability as well as damages.

"The [lower court] verdict was reversed in its entirety as to both liability and damages and in the remanded trial the jury would have to identify which action if any were taken in retaliation for Messina requesting a desk audit and what damages if any proximately flowed from the retaliatory [act] or acts," Hanrahan said. "On remand the borough could not dispute that Messina had a reasonable belief or that the desk audit request was a disclosure for purposes of CEPA. So issues of liability, causation, and damages were to be tried."

Internally, blame quickly shifted to the borough's former counsel in the lawsuit, Christopher Botta. The governing body claimed that Botta had conceded that Messina was a whistleblower, which precluded the borough from pursuing other facts in the case before an appellate panel.

Trawinski said the governing body would consider whether to pursue a claim of legal malpractice against Botta.